New Rules for the Unruly – Montreal Protocol 2014 Comes Into Force

Unruly air passenger behavior appears to be reaching new heights, but things may start to change.  On January 1, 2020, the Protocol to Amend the Convention on Offences and Certain Other Acts Committed on Board Aircraft, more commonly known as the Montreal Protocol 2014, came into force. The Montreal Protocol 2014 amends the Tokyo Convention of 1963, which gives jurisdiction over offences committed on board aircraft to the state of registration of the aircraft in question. The Tokyo Convention also provides guidelines for what principles should be followed when dealing with unruly passengers. It also gives aircraft commanders the power to take all reasonable steps (including restraint) against an unruly passenger to protect the safety of those on board, maintain discipline on the flight and to deliver the unruly passenger to law enforcement agents upon landing. Unfortunately, the Tokyo Convention had a number of weaknesses and certain loopholes which could allow unruly passengers to escape law enforcement because of jurisdictional issues or ambivalence to prosecute.

Unruly passenger incidents on board aircraft that threaten safety and security have become a significant and too common issue faced by airlines, flight and cabin crew, as well as the travelling public. Unruly behavior may include assault of other passengers or crew, sexual abuse or harassment, illegal consumption of alcohol and/or narcotics, refusal to comply with safety instructions, making threats that could affect the safety of the crew, passengers and aircraft, and other types of disorderly behavior. A significant number of unruly passengers who engage in these activities rarely face prosecution or other legal or economic sanction. When the captain of an aircraft delivers or disembarks an unruly passenger to the authorities, the authorities often determine that they do not have jurisdiction when the aircraft is registered in another state, or they may have little interest in prosecuting for an incident which took place in or over another country.

The Montreal Protocol 2014 makes several improvements to the Tokyo Convention by expanding jurisdiction over offences to also include the state of the operator and the state of landing. Further, if an aircraft diverts to a third state, it gives that state the competence to exercise jurisdiction at its discretion. The Montreal Protocol 2014 gives greater clarity to the definition of unruly behavior by simply requiring reasonable grounds to believe that a serious offence has been committed. The Montreal Protocol 2014 also recognizes that airlines have a right to seek compensation for the significant costs caused by unruly passenger incidents.

IATA and numerous airline associations have urged states to prioritize the ratification, acceptance or accession to the Montreal Protocol 2014. With the 22nd instrument of ratification recently being deposited with the Secretary General of ICAO, the Montreal Protocol 2014 has come into force and applies to all member states. At this time, Canada, the US and the UK are not signatories. However, given the strong support from the airline industry and our government’s interest in protecting passenger rights, this may lead to Canadian ratification in the future.

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